Legislation would require an end to the PACER paywall, cybersecurity upgrades within 5-6 years

Fix the Court applauds today’s bipartisan introduction of the Open Courts Act of 2026, a bill drafted by Sens. John Kennedy and Ron Wyden that would finally dismantle the PACER paywall and, in light of several major hacks over the last six-plus years, would require various cybersecurity upgrades to the judiciary’s electronic records system.

Though the Administrative Office in March announced it was working toward building a “new system [to] replace the Case Management / Electronic Case Files” architecture, without the congressional oversight that the OCA provides, it’s hard to see the AO’s press release as little more than a paper tiger.

Fix the Court’s Gabe Roth said: “PACER has been outdated for decades, so leaving modernization up to the folks who kept it around for so long is unwise. To ensure modernization proceeds with cost constraints, with an emphasis on cybersecurity and on a strict timeline, we need Congress to set up a framework. We have that now with the Open Courts Act, and I look forward to working with Sens. Kennedy and Wyden to make this law.”

Reasons for congressional oversight:
First, there’s costs. As you may recall, the 2022 CBO score of the Open Courts Act of 2021 noted the AO’s plan to farm out modernization work to a cadre of IT specialists would cost, in the AO’s own view, “about $180 million” (p. 5). That figure was a wake-up call and highlights the need to ensure the work doesn’t end up being a giveaway to Beltway bandits.

Then, there’s cybersecurity. Between the 2020 hack and the 2025 one, the judiciary has demonstrated an inability to keep malign influences out of its data. Though the third branch is working to put systems in place to reduce exposure, having congressionally mandated cybersecurity standards and reviews, as this bill requires, adds an extra layer of protection for information stored within the records system.

Finally, there’s timing. In March, the judiciary said, “It is anticipated that the district courts will be the first to start implementing aspects of the new case management system within the next year.” But that leaves more questions than answers, as a comprehensive fix is needed, not piecemeal revisions in a few courts. What’s more, Kennedy-Wyden gives the AO a long enough implementation timeline — five years, and possibly six if the AO needs it — to ensure that the work is done right.

1. The bill requires that when a document is filed (assuming it’s not under seal), a “permanent, predictable URL” will be created for it (p. 5).

2. In a victory for the Free Law Project, which has long advocated for this fix, the bill requires neutral citations for orders and opinions, so you will no longer need a Westlaw account when looking up a ruling or filing referenced in a judicial opinion (p. 6).

3. Though this bill replaces CM/ECF and PACER, which federal courts use, the code will be open source, so a state or tribal court seeking to modernize its records system would have access to the new system’s architecture (pp. 6-7; OMB memo referenced is here).

4. The bill requires that people “within the judiciary, attorney and pro se filers, the media, academic researchers, and the public” use the system during development and provide feedback. This contrasts with a modernization project the judiciary announced in March for which only judiciary users are being queried.

5. Finally, the bill requires that the new court records system be mobile-friendly (p. 15).

Fees:
This version largely maintains the fee structure created in the Open Courts Act of 2021. First, high-volume PACER users, defined as any entity that spends more than $25,000 per quarter on PACER fees, will be charged a usage fee determined by the Judicial Conference. Second, federal agencies that pay for PACER access will continue to pay those fees into the system. (Here’s what DOJ has paid recently.) Third, if there remains any difference to be made up, litigants that bring in more than a quarter million dollars annually may be charged additional filing fees.

Given that the system, per IT experts, should cost about “$10–$20 million […] to build and then $3–$5 million annually to continue to develop and maintain,” FTC does not anticipate the judiciary needing to raise filing fees because of this legislation.

Implications for AI:
There would seem to be positive ramifications for having PACER’s two billion court documents online, for free and available to LLMs. (Neutral citations > hallucinated citations.) However, given the tight deadline here, FTC is still reviewing those and will comment on them at a later date.